City’s failure to get detainees to doctors continues, attys say
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The Legal Aid Society, Brooklyn Defenders and Milbank have filed a motion of contempt against the Department of Correction, who they say has failed to get detainees to their medical appointments despite an early contempt finding. AP file photo by Seth Wenig
By Jacob Kaye
The city’s Department of Correction has again been accused of not providing medical care to detainees after three law firms representing the incarcerated population on Rikers Island filed a motion to have a judge hold the agency in contempt for skirting its mandated duties.
In a motion filed in Bronx Supreme Court this week, the Legal Aid Society, Brooklyn Defender Services and Milbank LLP requested that the court hold the DOC in contempt for its alleged ongoing failure to provide medical care to incarcerated New Yorkers.
The motion calls for the city to be fined around $3 million – the DOC recently settled to pay $50 million for failing to release detainees in a timely manner after they posted bail. If found in contempt, the fines would come on top of the approximately $200,000 in fines the DOC paid for previously failing to bring detainees to their medical appointments, which a judge ruled on earlier this year.
It’s a matter of life or death, the attorneys argue. There have been 19 deaths of people in custody in 2022. Several of those deaths were attributed to a lack of medical care, according to the Board of Correction, the DOC’s oversight body. Additionally, nearly all of the detainees who died had missed multiple appointments before their deaths.
At the heart of the missed appointments is the DOC’s staffing shortage, officials say.
Around 12 percent of the agency’s officers per day take sick leave, according to recent data from the city’s comptroller’s office. Additionally, the agency has lost around 1 percent of its uniformed staff in the past year, the comptroller’s office says.
With the staffing shortage – which began last year – the DOC hasn’t had the capacity to escort detainees to their scheduled or emergency medical appointments, the motion says.
From February through October, incarcerated people on Rikers Island missed over 12,000 medical appointments because officers were not available to escort them, DOC data shows. The motion calls for a $250 fine for each of those missed appointments.
“For a while now, there has been an issue with DOC providing medical care to people in their custody, in sort of a chronic systemic level,” Lucas Marquez, the associate director of civil rights and law reform at Brooklyn Defenders, told the Eagle on Tuesday. “DOC hasn't been regularly providing medical care to the people in its custody pursuant to its legal responsibility.”
The DOC referred the Eagle to the city’s Law Department when reached for comment on Tuesday.
A spokesperson for the Law Department said that the “DOC is doing everything it can to meet the demanding number of scheduled appointments for the people in its custodial care.”
The spokesperson also argued that a bulk of missed medical appointments on Rikers Island have been a result of detainees refusing to be taken to the doctor.
“The majority of missed appointments are due to persons in custody declining to go to their appointments, and it is their right to refuse,” the spokesperson said. “Appointments missed due to lack of a DOC escort represents only a small part of non-production.”
The spokesperson added that around 0.4 percent of all missed appointments in the last six months of the year have been a result of a lack of escort.
The number of missed medical appointments on Rikers Island has been steadily increasing since July of this year.
According to the DOC’s online data dashboard, around 7,000 detainees refused to be taken to a medical appointment in November. A little more than 1,000 detainees missed appointments because they were in court and a little less than 10 missed appointments because they were getting their haircut. The DOC does not publicly share how many detainees missed medical appointments because an escort was not available. It does however list an “other” category in its dashboard, which includes appointments missed due to lacking escorts. Around 1,400 appointments listed under the “other” category were missed.
This is the second time the three law firms have brought a contempt action against the DOC for its alleged failure to produce detainees for medical appointments.
In December 2021, Judge Elizabeth Taylor – who will also preside over the motion filed this week – found the corrections agency in contempt of an order to provide medical care to its incarcerated population.
When attempting to purge themselves of the contempt order in February of this year, the DOC was accused by attorneys from Milbank, the Legal Aid Society and Brooklyn Defenders of changing the way they collect their data – by creating the “other” category in its data collection – in an effort to mask the missed appointments.
“We can’t use this data as a metric to measure whether or not DOC is in compliance,” Amie Bircoll, an attorney with Milbank, told Taylor in February. “The DOC appears more concerned with data than providing care.”
Taylor eventually ordered the DOC to pay around $200,000 in fines to detainees who had missed their appointments.
Marquez said that while the DOC has made improvements in the past year, it hasn’t done enough to prove that it's meeting its legal mandate.
“DOC has been doing some things but I think that overall, we're still seeing this as a large issue that's impacting a lot of people in the jails,” Marquez said.
Marquez added that while the first and second motion to hold the DOC in contempt are similar, this new filing has some important differences.
To start, the fines the attorneys are requesting are far higher than the fines they previously requested. Additionally, the attorneys requested a separate hearing to have Taylor figure out the maximum number of detainees the DOC can have in their custody and provide medical care to.
The jails population has steadily risen since the start of the pandemic. Currently, there are around 5,900 people in DOC custody, the largest population since August 2021, when there was a spike.
“There's just far too many people in custody right now, and DOC has shown that they can't handle that amount of people safely,” Marquez said.
Last week, DOC Commissioner Louis Molina called into question the city’s ability to close Rikers Island and transition to borough-based jails by 2027 – as mandated by city law – during a City Council hearing on the jail complex. The city will only have the capacity to house around 3,300 detainees under the borough-based jails proposal and Molina said that he expects the population to reach 7,000 by 2024.
“I don't see [population estimates] being at 3,300 in less than four years if nothing else changes with the administration and adjudication of the administration of justice at the court levels,” Molina said. "I think if Rikers has to close we have to think about where does the balance of that people go.”
